Opinion
2428
December 19, 2002.
Order, Supreme Court, Bronx County (George Friedman, J.), entered May 8, 2001, which set aside the verdict as against the weight of the evidence, found defendants liable as a matter of law and ordered a new trial on the issues of apportionment of liability and damages, unanimously reversed, on the law and the facts, without costs, and the jury verdict reinstated.
Jay L.T. Breakstone, for Plaintiff-respondent.
Tahirih M. Sadrieh, for Defendants-appellants.
Before: WILLIAMS, P.J., NARDELLI, ELLERIN, RUBIN, MARLOW, JJ.
The trial court relied on an incorrect standard in setting aside the verdict as against the weight of the evidence. Instead of determining whether the jury could "`have reached their conclusion upon any fair interpretation of the evidence'" (Bernstein v. Red Apple Supermarkets, 227 A.D.2d 264, 265 [citations omitted], lv dismissed 89 N.Y.2d 961;Revill v. Boston Post Road Dev. Corp., 293 A.D.2d 138, 142, appeal dismissed 98 N.Y.2d 725, Jamal v. New York City Health Hosps. Corp., 280 A.D.2d 421, 422), the trial court determined that "there is simply no valid line of reasoning and permissible inferences which could possibly lead rational men to the conclusion reached by the jury on the basis of the evidence presented at trial" (Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499), the standard for determining the sufficiency of the evidence. The jury's verdict, i.e., that the ambulance, with lights and sirens on, was responding to a police call and that there was no recklessness, clearly rested within a fair interpretation of the evidence presented at trial.
Moreover, it was error for the court to find that the purported reckless conduct was the proximate cause of plaintiff's injuries as a matter of law. Assuming that the conduct was reckless, "[t]he issue of whether a defendant's negligence was a proximate cause of an accident is separate and distinct from the negligence determination" (Ohdan v. City of New York, 268 A.D.2d 86, 89, lv denied 95 N.Y.2d 769). The evidence at trial raised a question of fact as to whether the conduct of the ambulance driver, plaintiff or both was the primary cause of plaintiff's injuries.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.